How Politics Is Ruining the Immigration Courts

Immigration judges are DOJ operatives, which makes them especially vulnerable to the White House’s whims

John Washington
GEN
Published in
5 min readJul 8, 2019

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Credit: Loren Elliott/Getty Images

TThe U.S. immigration court system is in collapse. While the courts are still plowing through hearings and closing cases, a damning new report from the Innovation Law Lab and the Southern Poverty Law Center argues that U.S. immigration courts are more a politicized wing of the executive branch than a neutral system of unbiased adjudication. With close to a million backlogged cases, increasing pressure from the Trump administration to rush judgments, ever-tightening restrictions for asylum — as well as ICE agents stalking courthouses and the courts themselves disseminating misinformation — immigrants wanting to stay in the U.S. face an increasingly adversarial, and sometimes downright cruel, system.

According to the report, immigration courts “violate noncitizens’ rights in a systemic, pervasive manner.” At the same time, asylum denial rates in 2018 were at an all-time high at 65%, up from 42% just six years ago. The same study found that denial rates rose around 5% just in the first six months of the Trump presidency, possibly a reflection of Trump’s anti-immigrant animus. In many cases, according to the report, it’s the judges themselves who are creating a biased and hostile environment.

To understand why immigration judges are doing the executive’s bidding, and sometimes even acting with hostility toward migrants, we need to understand their role within the court system. Despite their patrician robes, immigration judges do not wield the same authority as their peers in state or federal courts. That’s to say, their power doesn’t come from Article 3 of the Constitution, which establishes and empowers the judicial system. Instead, immigration judges are “administrative judges” who, as defined by the Justice Department, are “non-supervisory career attorneys employed by” the attorney general. In other words, they are part of the executive branch instead of the judicial branch, and are under the supervision of the nation’s top law enforcement officer (currently William Barr), who is a political appointee.

Immigration judges’ compromised stature actually predates the Department of Homeland Security…

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John Washington
GEN
Writer for

John Washington is a writer and translator focusing on immigration and criminal justice. His first book on US asylum history/policy is forthcoming from Verso.